The gang rape and
murder of the Delhi girl has stirred the conscience of the nation with an
unprecedented call to solidarity and action. But the response has been marked by an
unusual degree of rhetoric and few practical suggestions seem to have emerged.
Predictably calls have been made to make laws more severe – from chemical
castration to decapitation to lynching to death everything has been suggested
to deter the potential rapists. But lynch mobs rarely make good laws consistent
with the legal and cultural practices of a society and even the best laws are
not self propelling mechanisms; the machinery of law has to be brought into
action by first reporting of the crime.
To stay practical and
sure footed crime against women- especially rape- has to be contextualized so
that one sets realistic goals. In our social milieu which forever treats
woman as “the second sex “in the memorable phrase of Simon De Beauvoir, for
the female of the
species, if she survives the gender discrimination test then other degrading
prospects like domestic violence, curtailment of reproductive rights and female
sexuality, eve teasing, sexual harassment stare her in the face despite institutional
guarantees. The discourse
relating to issues affecting women belong to two different discursive worlds
and legal narratives certainly belong to the world of male concerns and
values. The suffering of the raped victim– injury to
her body but the more lasting psychic destruction-is never the dominant issue.
Rape is largely an issue between contesting males; between one who is her
custodian as her father brother or son and the other who is the trespasser
illicitly seeking carnal knowledge of her. That is the key to the whole problem-
the problem is never seen from the viewpoint of the victim. Honour killing is just one variant of
the gamekeeper mentality. So it is not only the laws but the social
order that needs to be changed.
Rape is one of
the most grievous of crimes but its reporting is extremely tardy for a variety
of reasons foremost among them is that the victim is made to feel like the
shamed party. The criminal aggressor often exploits the silence of
the victim for fear of public humiliation to his advantage. Quite simply men
feel encouraged to rape because in many cases they know they can rape without
the fear of being reported or punished. The casual approach of the society can
be gauged from the fact that the marriage of the victim to the
perpetrator of rape is often considered as an amende honourable.My long stint
in the CID as head of the cell for offences against women confirmed the general
belief that rape is not a rare misfortune suffered at the hands of a depraved
stranger. Much more often the culprit comes wearing the mask of a
father, brother, friend, and teacher and the society colludes to sweep the
incident under the carpet? So any serious initiative to fight
this crime must take into account long history of
rape with impunity, a legacy of indifference and silence about abuses and a
very philosophical often tolerant and sometime appreciative attitude to the
indignities inflicted on women in domestic settings. Given the nature and
context of the crime reliable data is not available. In strife torn areas
allegation of rape by security forces abound and the attitude of the
governments to these rapes are akin to incestuous rapes in familial
setting-one of unofficial condonation.
So it instills in
the victims a strange diffidence to their own degradation. The reluctance of
the victim to report rape and other abuses is matched by an equal indifference
in the authorities to register the complaint.
The procedure to
secure justice has its own hazards. Rape is a crime which is generally
committed in secrecy, in the presence of few or no witnesses at all. In case of
gang rapes the witnesses are also accomplices. So the victim has only her words
by way of evidence. The material serological evidence on the person of victim
as well as the accused is often degraded or lost because of delay, sometimes
for unavoidable reasons but sometimes with intent. In any other offence against
the body the injury is palpable and demonstrable but in case of rape the
victim has to undergo the necessary but demeaning examination of her private
parts. At the trial she is made to relive her private shame publicly. The
victim is interrogated and cross-examined. Physically and psychically
shattered, the victim is, in a manner of speaking reduced to an inhuman exhibit.
As a strategy the most indelicate questions, calculated to embarrass and
intimidate her into disassociating herself from trial are posed to her. In
seeking retribution for her present misfortune her sexual past quite
unnecessarily becomes a subject matter of mischievous
curiousity. After all this ignominy she has only one in five chance
of securing a conviction for her tormentor!
The question of
sentencing comes only when these conditions have been met successfully; a
case has been reported in time, the police have put up a good and
professionally investigated case, the prosecution has presented its case
cogently, the presiding judge is satisfied that rape has indeed taken place as
to warrant the verdict guilty. The provision of law itself gives the judge a
lot of freedom as to the award of the sentence. To introduce a bit
of legal realism, in
practice, adjudications – particularly gender based adjudications – often lead
to widely divergent outcomes. A host of subjective factors including the particular
social background, intellectual leanings, gender bias and other prejudices of
the presiding judge may come into play.
So those clamouring
for adequate justice to women must dispense with rhetoric and emotion and put
their cool heads together to consider measures which are consistent with the
current thinking on penology and the legal enforceability of the measures. The
history of sentencing philosophy during the last century or so has
seen a move away from the physical pain of the body to an economy of suspended
rights. In a situation where demands are being made for dispensing with capital
punishment altogether, taking away of the life of a person whose victim has
survived the crime is not likely to be favoured by many. Retribution
has forever to be tampered with the chances of rehabilitation. The emphasis
should be on ensuring speedy and successful trial so that the nexus between
crime and punishment is firmly established and acts as deterrent to potential
rapists.
Some
suggestions.
Propaganda has its
value. A concerted campaign must be launched to draw out women to report rape.
Rape is not their fault and the tormentor must be punished. Reliable
data on unreported rape is not to be had and it is any body’s guess is as good
as mine but my hunch is that barely one out of a hundred rapes gets
reported. Out of that one percent, for every hundred rapes reported 75 walk
free. So one can only imagine the unconscionably large number of rapists hidden
amongst us and the danger that they pose to women.
Exclusive women police
stations where specially trained officers and counselors, an idea long on the
police agenda, must become available in adequate numbers. The registration of
the case should be as unobtrusive and private an affair as is possible under
the circumstances. Police has for so long been an exclusively male domain
that the entire organizational culture has come to have a
bit of a locker room flavour especially when it comes
to a case of rape. Rape which is a special report case must be
investigated by a cadre of trained officers.
During the trial
questions leading as to the character of the victim should be statutorily
barred and the medical report should be businesslike and relevant to the issue.
The needless two finger test and other things reflective of sexual history of
the victim should be barred. Such trials should be necessarily held in camera.
The accused should be put to a polygraph test and his refusal should be taken
note of by the presiding judge.If the victim volunteers to
undergo a polygraphic test it should redound to her credit.
Especially designated
fast track courts should dispose of cases so that the
demonstrable nexus between crime and its punishment which is of the essence of
deterrence.
The legal soundness of
this proposal may be debatable but as an
out of box idea I would suggest that since the courts are already
overburdened a trial by jury where equal number of men and women who
are aware of the local social conditions and values were
represented.( I know jury trials are getting out of fashion.) I would argue
for a punishment that is not so much rooted in the physical pain as
in public humiliation and suspended rights of the accused. For example the
accused could be deported to some isolated settlement to live in perpetual
shame of his ignoble deed just as the victim is forced to suffer in memory’
pain. After he has served his sentence, in addition to the various forfeitures that
a convict is subject to , he should not be allowed admittance to any public
place without the tutelage of a close female relation. The idea is that he must
be “revealed” every moment of his life he lives thereafter as a leper of the
social and moral order. His name should be put on a national register and it
should be available to all the citizens at all times. The newspapers have
reported the state of mind of the five accused persons who overwhelmed by the
public opinion are horrified at their own deed. The punishment as suggested
does not take away life, limb or liberty but it would be a fate worse than
death or physical torture.
